Estate, Wills and Trust Litigation

Estate and Probate Litigation

Litigation involving a probate estate or trust is particularly difficult because it usually involves family member against family member, or relative against relative and are emotionally highly charged. Emotions can run high. Frequently what the decedent told one person is not the same as what may have been said by decedent to another person. An heir or beneficiary's expectations are often affected by what the decedent said, did or what others thought the decedent was subjected to. Litigation involving a decedent's probate estate or a trust can involve issues that are not purely legal, but are very important to the family members.

We take the approach that litigation involving an estate, if possible is best resolved by settlement through mediation if possible, and prior to having a judge or jury resolve issues that the parties themselves cannot resolve. However if settlement is not possible, a trial in court is necessary, we bring all of our experience, education, creativity, work ethic and resources to assist our client.

Disputes involving probate estate or trust problems may include:

• Capacity or lack of capacity of the decedent
• Undue influence
• Interpretation of wording of a Will, Trust or other document
• Identity of the true heirs and beneficiaries
• Estate or trust administration, accounting, and self dealing
• Proper, or improper, use of a power of attorney for property management decisions
• Family farm, or family business, buy sell problems
• Partition of real estate
• Conservatorship's use or misuse of funds
• Medicaid claims and liens
• Creditor claims
• Inaccurate, incomplete or mistaken estate plan documentation

 

Administration of an Probate or a Trust Can be Contentious at Times 

Fiduciary Duties

Both Personal Representatives and Trustees owe fiduciary duties to the Heirs or Beneficiaries to use their best judgment, to deal fairly with the assets, and to refrain from any sort of transactions involving a conflict of interest mainly intended to benefit themselves. Personal Representatives and Trustees who violate this fiduciary duty may be personally liable for damage caused by their breach, including the payment of the opposition's attorney's fees.

Document Interpretation, Status of Heirs, Conduct of Fiduciary 

In the administration of a Trust or an Estate, individuals and families sometimes face disputes over the validity of certain documents, the status of certain heirs or beneficiaries, or the conduct of a Trustee or Personal Representative. Court involvement through litigation may be necessary to address serious disagreements or allegations of misconduct.

 

Processes and Procedures

 

Iowa and Illinois law sets out specific procedures to create a valid Will, and therefore challenge those documents. Formalities of execution, witnessing, signing, and notary are essential.  A Will that does not meet the requirements of the law could face a challenge in Court from anyone with an interest in the Estate. The Personal Representative named in the Will, or another Representative of the Decedent, may have to defend the Will's validity in Probate Court during the administration of the Estate. Multiple versions of a Will may appear in Court proceedings, and the Court must determine which Will represents the Decedent's wishes and meets the law's standards.

Disputes may arise once a Court approves a Will as to how to interpret the decedent's instructions. If a provision in a Will is vague or ambiguous, challenges to the Personal Representative's interpretation of that provision could come from beneficiaries or creditors who disagree with how the Personal Representative distributes certain assets. Heirs and other claimants may also challenge a Personal Representative's actions and decisions in managing Estate property if those decisions harm either the Estate's value or the heirs' interests.

If a person dies without a Will but leaves behind property, Florida law has procedures for “intestate succession,"  which requires Court involvement in order to name a Personal Trust Representative to act on behalf of the Estate and to determine the identities and interests of the legal heirs. A person may apply to the Court for appointment as the Personal Representative of the Estate, and others may dispute that person's appointment, the identity of the heirs, and the proportion of each heir's interest in the Estate.

 

Probate and Trust Litigation

 
A Trustee of a trust and the fiduciary - Executor oe Administrator of an Estate have a legal obligation to follow the instructions and provisions set forth in the  Last Will & testament or Trust and to deal fairly with the assets and the beneficiaries of the Trust. Beneficiaries have certain rights to review the Trustee's performance and challenge actions that impact their interests or the value of Trust assets. Similar to Estate Litigation, Trust Litigation allows Beneficiaries to monitor a Trustee's performance, to challenge decisions that deviate from the Trust's terms, and to obtain relief for harm caused by the Trustee. The validity of Trusts can also be challenged on grounds very much like those used to contest a Will.
 

Fiduciary Duties

Both Personal Representatives and Trustees owe fiduciary duties to the Heirs or Beneficiaries to use their best judgment, to deal fairly with the assets, and to refrain from any sort of transactions involving a conflict of interest mainly intended to benefit themselves. Personal Representatives and Trustees who violate this fiduciary duty may be personally liable for damage caused by their breach, including the payment of the opposition's attorney's fees.

Undue Influence

When creating a plan for distributing your Estate, you want to make sure that the plan truly reflects your wishes, and that no one uses any form of pressure to influence you. Law law establishes an extensive process to create a Will and an Estate plan. The procedure requires authentication of documents in order to prevent undue influence from affecting how an Estate plan is drafted or enacted, and it provides a way to challenge Wills that are the result of such undue influence. Iowa Probate Code states that a Will “procured by fraud, duress, mistake, or undue influence” is void. A diligent attorney can help make sure that an Estate plan is free of undue influence and represents the true wishes of the Testator.

“Undue Influence” Defined

The  Courts have defined “undue influence” in several ways. In Iowa and Illinois undue influence can be described as over persuasion, coercion, or force that destroys or hampers the free agency and will power of the testator. The person creating the Will, the Testator, must be subject to the control or persuasion of another to the point that the Testator cannot act voluntarily or with any agency at all. In the event of this sort of influence, the Will does not represent the Testator's wishes but rather the wishes of the person influencing the Testator. The law allows voiding a Will that is shown to have resulted from undue influence.

Preventing Undue Influence

The law establishes a procedure for drafting, executing, and authenticating Wills. A Will must be in writing with the Testator's signature at the end. At least two people must witness the signing of the Will by the Testator and must sign the Will themselves. The Testator may authorize the self-proof of the Will by affidavit, along with affidavits from all Witnesses. Wills that do not meet all the technical statutory requirements may need additional proof to be admitted by the Probate Court. Although a seemingly simple procedure, Wills are often executed improperly.

Challenging Undue Influence

Any person with an interest in the Estate may challenge the Will in Court by petitioning the Court and allege undue influence. Initially, the Petitioner is responsible for producing evidence of undue influence. Florida law creates a presumption of undue influence in certain circumstances. If the petitioner can show that a person who substantially benefits under the Will had a close confidential relationship with the Testator and played an active role in preparing or procuring the Will, then the presumption applies and the burden of proof shifts to the person alleged to have committed undue influence. If a Petitioner meets the burden of proof, the Court must declare void the portions of the Will found to have been subject to undue influence, which may not include the entire Will. Undue influence is the primary reason Wills or Trusts are revoked and deemed invalid.

Our Approach

We will work hard to earn your trust and loyalty through our commitment to you and your case, by our work ethic, our experience and resources, our deep commitment to obtain justice and our honest ethical approach.

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